Citation Nr: 0824133
Decision Date: 07/18/08 Archive Date: 07/30/08
DOCKET NO. 04-39 971 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUES
1. Entitlement to an effective date earlier than June 27,
2001, for service connection of post traumatic stress
disorder (PTSD).
2. Entitlement to an effective date earlier than June 27,
2001, for entitlement to a total disability evaluation due to
individual unemployability. (TDIU).
REPRESENTATION
Appellant represented by: Darla J. Lilley, Attorney-at-
Law
ATTORNEY FOR THE BOARD
W. H. Donnelly, Associate Counsel
INTRODUCTION
The veteran had active duty service with the United States
Marine Corps from December 1969 to August 1975.
This matter comes before the Board of Veterans' Appeals
(Board) following an April 2008 Remand from the United States
Court of Appeals for Veterans Claims (the Court) based on a
Joint Motion by VA and the appellant. In a December 2006
decision, the Board denied entitlement to earlier effective
dates. The Court remanded the claims for consideration of
the application of 38 C.F.R. § 3.156(c) to the reopened claim
of service connection
The matter originally arises from June and July 2004 rating
decisions by the Salt Lake City, Utah, Regional Office (RO)
of the Department of Veterans Affairs (VA), which granted
entitlement to the benefits sought and assigned an effective
date of June 27, 2001, for the awards.
The issue of entitlement to an earlier effective date for
TDIU is addressed in the REMAND portion of the decision below
and is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDINGS OF FACT
1. An original claim of service connection for PTSD was
received n February 8, 1991.
2. Service connection for PTSD was denied in a November 1995
Board decision on the ground that there was no verified
stressor.
3. Since the November 1995 denial of service connection,
additional service department records verifying stressor
allegations have been received; these records existed at the
time of the November 1995 denial and could have been obtained
at that time.
CONCLUSION OF LAW
The criteria for an earlier effective date of February 8,
1991, for the grant of service connection for PTSD, have been
met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.1, 3.155, 3.156, 3.400 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA Duties to Assist and Notify
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In light of
the favorable determination regarding the issue considered
below, no additional discussion of the VCAA duties is
required.
Effective date of Service Connection for PTSD
The assignment of effective dates of awards is governed by
38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. For reopened
claims, the effective date of service connection is generally
the date of receipt of the reopened claim or the date
entitlement arose, whichever is later. 38 C.F.R. § 3.400.
This general rule is modified in specific instance, according
to the facts of the case. Such exceptions include reopened
claims based on correction of military records (38 C.F.R.
§ 3.400(g)) and receipt of new and material evidence
(38 C.F.R. § 3.400(q)).
Here, although additional service department records do form
the basis of the reopened claim, correction of these records
is not an issue. The directives of 38 C.F.R. § 3.400(g)
apply to situations in which a discharge has been upgraded,
and not to previously undiscovered records. This provision
is inapplicable in the present case.
The regulation at 38 C.F.R. § 3.400(q), dealing with the
effective date in cases of submission of new and material
evidence, is applicable, as the veteran's claim had been
previously and finally denied by VA, and was reopened in
connection with his June 2001 claim. However, during the
pendency of this appeal, the provisions of 38 C.F.R. § 3.400
were amended, effective October 6, 2006; specifically,
section 3.400(q) was modified to eliminate a distinction
between new and material evidence which was a service
department record and that which was not. The distinction
was instead incorporated into 38 C.F.R. § 3.156(c). The
December 2006 Board decision denying entitlement to an
earlier effective date did not consider this amendment, and
instead applied the old regulation. Upon further review, the
Board determines that the amended 38 C.F.R. § 3.400(q)
applies to the instant claim, as the appeal was still pending
at the time of the amendment and the formal rulemaking did
not specify that application was to be limited. Because the
regulation modifies the effective date analysis only when
service department records are not involved, it has no effect
here.
Instead, an analysis of the effective date must consider the
provisions of 38 C.F.R. § 3.156(c), which was also amended
effective October 6, 2006. The applicable regulation
provides that in cases where service department records
existed at the time of the prior decision and had not been
associated with the claims file for consideration, the
original claim is to be reconsidered. In effect, the
finality of the prior decision is rescinded, and an earlier
effective date, based on the date of receipt of the
previously denied claim, may be assigned.
Here, the appellant argues that service department records
obtained by his attorney in connection with his reopened June
2001 claim formed the basis of the grant of service
connection for PTSD. These records, he argues, are of the
type described in 38 C.F.R. § 3.156(c), as they existed at
the time of the original claim and were not associated with
his file at the time of the initial denial. Records relating
to verification of in-service stressors are specifically
included as falling within the regulation. To that extent,
the Board agrees.
However, the regulation also carves out an exception to the
rule regarding reconsideration of prior denials on receipt of
new and material service department records. The regulation
provides that reconsideration does not apply where VA could
not have obtained the records at the time of the original
denial because the claimant failed to provide adequate
information for VA to identify and obtain the records from
the appropriate custodian. 38 C.F.R. § 3.156(c)(2). The
veteran maintains that had VA made reasonable development
efforts at the time of his original February 1991 claim, as
required by the law existing at that time, service department
records verifying his alleged stressor would have been
associated with the file. He alleges that sufficient
information was provided at the time of the claim to allow
meaningful inquiry by VA. In support of this allegation, his
representative points out that she was able to obtain service
department records verifying an in-service stressor based
solely on the information provided to VA in February 1991.
The Board must agree. At the time of the 1991 RO decision,
and in the 1995 Board denial of service connection, the
triers of fact expressed significant reservations as to the
credibility of the veteran. However, for purposes of
verification of the stressor, where sufficient information
has been presented to allow meaningful inquiry, credibility
must be presumed in the absence of evidence contradicting the
stressor allegations.
Had VA acted to obtain all possibly relevant service
department records at the time of the original claim, without
regard to a credibility determination, it is evident that
verification of the death of Jimmy would have been
discovered. The research performed by the veteran's
representative relied upon no evidence or information which
was not already of record in 1991. Although that development
yielded evidence of additional stressors from the deaths of
two other Marines, not previously mentioned by the veteran,
it also showed the death of a "Jimmy" under circumstances
bearing some passing resemblance to those alleged by the
veteran.
Because the evidence warranting the reopening of the
previously denied claim of service connection for PTSD
consisted of service department records which existed at the
time of the original denial and were obtainable by VA, the
effective date must be assigned as if the original decision
had not been made. 38 C.F.R. § 3.156(c). In this instance,
therefore, an effective date of February 8, 1991,
representing the date of receipt of the previously denied
claim for service connection of PTSD, must be assigned.
38 C.F.R. § 3.400(a)(2)(i).
ORDER
An earlier effective date of February 8, 1991, is granted for
service connection of PTSD.
REMAND
The veteran has additionally appealed the assignment of June
27, 2001, as the effective date of entitlement to TDIU. This
determination is inextricably intertwined with the
evaluation assigned for PTSD between February 8, 1991, and
June 27, 2001. The grant of an earlier effective date of
service connection does not automatically give retroactive
effect to the currently assigned evaluation. Any retroactive
evaluation must be adequately supported by medical evidence.
38 C.F.R. § 3.156(c)(4).
Evaluation of PTSD during this period is not an issue before
the Board, and will be determined by the RO upon effectuating
the above grant of an earlier effective date for PTSD. Until
the RO takes such action, the Board cannot determine the
veterans schedular eligibility for TDIU or his actual
entitlement. The issue of entitlement to an earlier
effective date for TDIU is therefore remanded to the RO for
consideration following the assignment of evaluation for PTSD
from February 8, 1991.
Accordingly, the case is REMANDED for the following action:
1. The RO should perform all required
development and rating actions required to
implement the above grant of an earlier
effective date of February 8, 1991, for
PTSD, as well as assign appropriate
evaluations since that time, to include
possible assignment of staged ratings.
2. Following such, the RO should consider
the veteran's entitlement to an earlier
effective date for assignment of TDIU. If
such consideration is rendered moot by the
assignment of a schedular evaluation, no
action is required with respect to TDIU.
If any benefit sought remains denied, the
RO should issue an appropriate SSOC and
provide the veteran and his representative
the requisite time period to respond. The
case should then be returned to the Board
for further appellate review, if otherwise
in order. No action is required of the
appellant unless he is notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs